Gary DaMato v. Warden (2014)

MEMORANDUM OF DECISION

I. Procedural history

The respondent was the defendant in criminal matters pending in the Judicial District of Hartford.   Following a jury trial, he was convicted of Inciting Injury to Persons, in violation of General Statutes §§ 53a–179a(a), Attempt to Assault a Prosecutor, in violation of General Statutes §§ 53a–49(a)(2) and 53a–167d(a), and Attempt to Commit Murder, in violation of General Statues §§ 53a–49(a)(2) and 53a–54a.   On October 25, 2005, the trial Court, Mulcahy, J., sentenced the petitioner to a total effective sentence of twenty-one (21) years incarceration.¹  The petitioner appealed his convictions, which were affirmed in State v. Damato, 105 Conn.App. 335, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.24 481 (2008).   During all proceedings at the trial level relevant to the claims in this petition, he was represented by Attorney Donald O'Brien.   The petitioner was represented initially on appeal by Attorneys Cyd O. Oppenheimer and Richard A. Reeve, however, their appearances were withdrawn on January 3, 2007, after the petitioner's motion to dismiss counsel and to represent himself was granted.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on September 29, 2012.²  After the appointment of counsel, a three-count amended petition was filed on July 11, 2012, claim one asserting prosecutorial misconduct and claims two and three asserting ineffective assistance against his appellate attorneys.   The respondent filed a return generally denying the petitioner's claims, and asserting special defenses that claim one was procedurally defaulted and that claims two and three failed to state claims upon which relief can be granted.   The petitioner filed a reply to the return on August 15, 2012.   The respondent filed a motion to dismiss (# 114.00) on July 20, 2012, to which the petitioner filed a timely objection.   After a hearing on the motion, the court granted the respondent's motion to dismiss claim one and denied the motion as to claims two and three.   Damato v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV11–4003869 (Nov. 15, 2012, Newson, J).

The remaining claims were tried to the court on September 18, 2013.   Prior to the opening of evidence, the court, pursuant to its authority under Practice Book § 23–29, raised the issue of whether the petitioner's claims of ineffective assistance were subject to dismissal on grounds of res judicata based on the decision and findings of fact made in Damato v. Warden, State Prison, Superior Court, judicial district of Tolland, Docket No. TSRCV054000842S (Sept. 20, 2007, Swords, J.) ³ or whether this court, sitting in its role as a habeas court, had the legal authority to revisit certain findings of fact and, in order to rule in the petitioner's favor, to come to contrary conclusions than those reached by Judge Swords in that decision.⁴  At the conclusion of evidence, the court also ordered the parties to brief the issue of whether the petitioner's decision to proceed as a self-represented party on appeal, along with the Appellate Court granting his request for an opportunity to amend the brief that had already been filed by appellate counsel, barred him from bringing a claim of ineffective assistance against them.   The court ordered both sides to submit simultaneous post-trial briefs on or before November 19, 2013, addressing all issues, which were timely filed by both sides.   Additional procedure details will be addressed as necessary throughout the remainder of this decision.

II. Law and Discussion

“[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”   (Internal quotation marks omitted.)  Davis v. Commissioner of Correction, 117 Conn.App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).  “Our Supreme Court has adopted [the] two part analysis [set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] in reviewing claims of ineffective assistance of appellate counsel ․ The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances ․ [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ The right to counsel is not the right to perfect representation ․ [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.   A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions ․ Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ Most cases present only one, two, or three significant questions ․ The effect of adding weak arguments will be to dilute the force of the stronger ones ․ Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.”  (Citation omitted;  internal quotation marks omitted.)  Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808–09, 29 A.3d 166 (2011).

Upon reviewing the petitioner's claims against appellate counsel, the court has determined that it is not necessary for the court to address the issue of res judicata, whether this court has the legal authority to review the factual findings already made by Judge Swords in her previous decision, or whether the petitioner's decision to proceed as a self-represented party on appeal and being granted a full opportunity to amend the brief that had already been filed, because, even if the petitioner were successful in navigating his way through these legal barriers, he has failed to present any evidence that could be reasonably be considered to meet his affirmative duty to present evidence sufficient to prove his claims.  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622–24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (standing for the proposition that it is the petitioner's duty to present affirmative evidence in the form of witnesses and exhibits before the habeas court.)   Similarly, the complete lack of any affirmative and credible evidence in support of the petitioner's claims also makes it unnecessary to address the respondent's special defenses in detail.⁵  The petitioner in the present case has failed in all respects to make out even a prima facie case to support his claims.  Id.

The specific allegation made by the petitioner in claim one of petition is that his appellate attorneys counsel failed to “investigate prosecutorial misconduct.” ⁶  Other than his own rambling and confusing testimony about “lies” that were allegedly offered by witnesses during their testimony at the criminal trial, however, the petitioner has failed to present a single shred of credible evidence in support of his claims.   These “lies,” which the petitioner alleges were known by the State's Attorney, were often single words the petitioner had parsed out of the witnesses entire testimony.   The petitioner presented no evidence, other than his own unsupported and self-serving claims, that the testimony given by these witnesses was even contradictory to some other statement or testimony they had given, let alone that it rose to such a level of untruthfulness that it was improper for the State's Attorney to offer it or to fail to correct it.⁷  The evidence presented by the petitioner here is so insufficient that it does not warrant the court engaging in an examination of whether prosecutorial misconduct occurred.⁸  Having failed to present even a prima facie case that prosecutorial misconduct occurred at the trial level, the petitioner's claim of ineffective assistance fails, because it is impossible for him to establish that appellate counsel was deficient for failing to raise non-existent claims on appeal or that there is a reasonable likelihood that the petitioner would have obtained a more favorable result had these issues been properly raised.  Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808–09.

The petitioner's next claim is that appellate counsel was also ineffective for failing to seek articulation or rectification of the trial record, and for failing to investigate the authenticity of the trial transcripts, which the petitioner claimed contained material errors and omissions.   As with the claim above, however, the petitioner has failed to present any evidence, again, other than his own unsupported assertions, that there was so much as a scrivener's error or a missing period anywhere in the trial record.   In fact, the only witnesses presented to before the habeas court competent to testify on the subject of the trial transcript, Andrea Hawkins, the official court stenographer who worked the petitioner's trial, testified that she had reviewed all of her records and notes from the trial and found no errors or omissions.   She also testified that she had previously reviewed and compared her transcriptions with her trial notes in response to a similar request by the petitioner or his counsel shortly after the criminal trial and found no errors or omissions at that time either.   It was the petitioner's burden to show by affirmative evidence or exhibits that there was in fact some error or omission in the transcripts, and his failure to present any evidence that such errors or omissions actually existed is fatal to his claim.  Nieves v. Commissioner of Correction, supra, 51 Conn.App. 622–24.

III. Conclusion

Based on the foregoing, the petitioner for writ of habeas is DENIED, and judgment is entered for the RESPONDENT.

The petitioner shall prepare and submit a judgment file to the clerk within thirty days.   Notwithstanding, however, if the petitioner wishes to appeal this decision, then he shall prepare and submit all required appellate forms within the time periods required by statutory and Practice Book rule.

Hon. John M. Newson

FOOTNOTES

FN1. The sentence was broken down as follows:  11 years on each of the first two counts, and 21 years on the third count, all concurrent to each other..  FN1. The sentence was broken down as follows:  11 years on each of the first two counts, and 21 years on the third count, all concurrent to each other.

FN2. Also consolidated with the present matter are habeas petitions Mr. Damato filed on 12/24/08, 10/14/08 and 8/28/08..  FN2. Also consolidated with the present matter are habeas petitions Mr. Damato filed on 12/24/08, 10/14/08 and 8/28/08.

FN3. Although the court limited its res judicata motion specifically to this single prior habeas decision, the court was also aware at the time of the trial from review of official judicial records that Mr. Damato had filed some thirty-one actions of various types, including fifteen separate habeas petitions, alleging just about every conceivable wrong imaginable, against anyone who had anything to do with his criminal conviction.   He has also filed four additional habeas petitions challenging the same conviction since this trial concluded..  FN3. Although the court limited its res judicata motion specifically to this single prior habeas decision, the court was also aware at the time of the trial from review of official judicial records that Mr. Damato had filed some thirty-one actions of various types, including fifteen separate habeas petitions, alleging just about every conceivable wrong imaginable, against anyone who had anything to do with his criminal conviction.   He has also filed four additional habeas petitions challenging the same conviction since this trial concluded.

FN4. “Because of the limitations to which it is subjected, habeas corpus cannot be utilized as a substitute for an appeal of the original action, or for a writ of error, or for a petition for a new trial.   It may not be employed to review irregularities or errors of procedure or questions as to the sufficiency of evidence.   Nor may defenses, such as insanity, the Statute of Limitations, alibi, and the like, available to but not pressed by the accused at the trial, be raised by habeas corpus.”  Wojculewicz v. Cummings, 143 Conn. 624, 628–29, 124 A.2d 886 (1956)..  FN4. “Because of the limitations to which it is subjected, habeas corpus cannot be utilized as a substitute for an appeal of the original action, or for a writ of error, or for a petition for a new trial.   It may not be employed to review irregularities or errors of procedure or questions as to the sufficiency of evidence.   Nor may defenses, such as insanity, the Statute of Limitations, alibi, and the like, available to but not pressed by the accused at the trial, be raised by habeas corpus.”  Wojculewicz v. Cummings, 143 Conn. 624, 628–29, 124 A.2d 886 (1956).

FN5. “[A] habeas court generally should decide the threshold issue of cause and prejudice when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the cause and prejudice rule was designed to promote.”  Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007)..  FN5. “[A] habeas court generally should decide the threshold issue of cause and prejudice when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the cause and prejudice rule was designed to promote.”  Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007).

FN6. For purposes of granting the petitioner's claims the broadest reading possible, this court will assume that the word “investigate” refers to an alleged failure by appellate counsel to thoroughly review the trial court record and not a claim that appellate counsel failed to engage in some independent investigation of matters not contained in the trial record.  “A party is not entitled to raise issues on appeal that have not been raised in the trial court.  [B]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court.”   (Citations omitted.)  Alexander v. Commissioner of Correction, 103 Conn.App. 629, 640, 930 A.2d 58, 64 (2007)..  FN6. For purposes of granting the petitioner's claims the broadest reading possible, this court will assume that the word “investigate” refers to an alleged failure by appellate counsel to thoroughly review the trial court record and not a claim that appellate counsel failed to engage in some independent investigation of matters not contained in the trial record.  “A party is not entitled to raise issues on appeal that have not been raised in the trial court.  [B]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court.”   (Citations omitted.)  Alexander v. Commissioner of Correction, 103 Conn.App. 629, 640, 930 A.2d 58, 64 (2007).

FN7. “As long ago as Mooney v. Holohan, 294 U.S. 103, 112 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice ․ In Napue v. Illinois, 360 U.S. 264 (1959), we said, [t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears ․ Thereafter Brady v. Maryland, 373 U.S. [83] at 87 [ (1963) ], held that suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution ․ When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule ․ We do not, however, automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict ․ A finding of materiality of the evidence is required under Brady ․ A new trial is required if the false testimony could ․ in any reasonable likelihood have affected the judgment of the jury ․” (Citations omitted;  internal quotation marks omitted.)  Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct.763, 31 L.Ed.2d 104 (1972)..  FN7. “As long ago as Mooney v. Holohan, 294 U.S. 103, 112 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice ․ In Napue v. Illinois, 360 U.S. 264 (1959), we said, [t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears ․ Thereafter Brady v. Maryland, 373 U.S. [83] at 87 [ (1963) ], held that suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution ․ When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule ․ We do not, however, automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict ․ A finding of materiality of the evidence is required under Brady ․ A new trial is required if the false testimony could ․ in any reasonable likelihood have affected the judgment of the jury ․” (Citations omitted;  internal quotation marks omitted.)  Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct.763, 31 L.Ed.2d 104 (1972).

FN8. “In analyzing the defendant's claim, we ask whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process ․ We do not focus alone, however, on the conduct of the prosecutor.   The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.   In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court ․ has focused on several factors.   Among them are the extent to which the misconduct was invited by defense conduct or argument ․ the severity of the misconduct ․ the frequency of the misconduct ․ the centrality of the misconduct to the critical issues in the case ․ the strength of the curative measures adopted ․ and the strength of the state's case.   (Citations omitted;  quotation marks omitted.)  State v. Williams, 204 Conn. 523, 539–40, 529 A.2d 653, 661 (1987)..  FN8. “In analyzing the defendant's claim, we ask whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process ․ We do not focus alone, however, on the conduct of the prosecutor.   The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.   In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court ․ has focused on several factors.   Among them are the extent to which the misconduct was invited by defense conduct or argument ․ the severity of the misconduct ․ the frequency of the misconduct ․ the centrality of the misconduct to the critical issues in the case ․ the strength of the curative measures adopted ․ and the strength of the state's case.   (Citations omitted;  quotation marks omitted.)  State v. Williams, 204 Conn. 523, 539–40, 529 A.2d 653, 661 (1987).

Newson, John M., J.